Joel Cohen is a former federal prosecutor who practices white-collar criminal defense law at Stroock & Stroock & Lavan. Mr. Cohen is the author of “Blindfolds Off: Judges on How They Decide” (ABA Publishing, 2014). He is also an Adjunct Professor of Law at Fordham University School of Law and Cardozo School of Law.
To train the next generation of lawyers in the law and practice of voting rights, ballot access, campaign finance, election administration, and democracy protection.
By Joel Cohen
Jan 22, 2023, 2:00 PM
The public doesn’t yet know if the documents withheld from the National Archives by then-outgoing Vice President Biden somehow involved Hunter Biden or his mystifyingly controversial laptop.
Nor do we know if the documents sent to Mar-a-Lago by former President Trump when his presidency ended involved his alleged plot to extort the Ukraine government into digging up dirt on Biden and his son, Hunter, to help Trump’s 2020 election bid. If such documents were at issue, they would present difficult—maybe, insurmountable—problems either for Biden or Trump. Maybe for both. But we don’t know – yet!
The two cases are unquestionably distinguishable—even putting aside preconceptions the reader might have about the two politicians, which undoubtedly influence our opinions about possibly furtive conduct by each. Some factors favor Biden. For example, he and his counsel volunteered the disclosure with no request from the National Archives. As for Trump, as president, he had the authority to declassify if he actually did so while still president. And there are other important distinguishing factors, including Trump’s alleged obstruction once confronted by the National Archives.
But this commentary is about reality. Does anyone seriously think that Vice President Biden himself, on the eve of leaving office after eight years of traveling the globe for President Obama, was packing the documents in his office? Or that President Trump, just before ending his stormy presidency (while trying to remain in the White House) sat on the Oval Office floor going through what he wanted shipped to Mar-a-Lago? For both, maybe in different ways, isn’t packing belongings what staffers do?
Unquestionably, America’s classification system is grossly overbroad. Far too many documents become classified. And the law doesn’t provide exceptions for when a public official simply “thinks” a document should legitimately be part of his private stock back home when his or her term is over.
As a personal but distinguishable example of this kind of thing, when I was leaving government service as a federal prosecutor, my colleagues and I feared potentially being sued by a high-ranking public official whom we had vigorously investigated for corruption offenses. We were also concerned that he might file a disciplinary complaint with the U.S. Justice Department especially given his exceedingly confrontational lawyer. I, myself, had aggressively questioned the official before a grand jury, and a transcript of that testimony still existed in my government office as I packed my belongings to leave for private practice (my colleagues having already moved on).
Did I want to be sure to continue to have access to that transcript which contained important admissions by him, if the worst occurred? You bet, I did. Could I be sure, though, that I would if he, a powerful figure, sued or filed a complaint and the Justice Department investigated (even if such an investigation would have been silly)? Surely, not; but grand jury secrecy rules prohibited making a copy for myself. And so, I couldn’t keep one for self-protection. Understand, this was a ruthless politician who had publicly complained vociferously about our investigation. Notably, in the context of this commentary, had I made a copy for myself it would have been deliberate—and myself doing it.
Such potential considerations might conceivably have been at play for both Biden and Trump—both had been vigorously attacked by their political opponents while in office. But putting aside our idiosyncratic views of these men and their politics, if neither Trump nor Biden themselves sat on the floor, so to speak, with flashlights on their helmets parsing through which records—including classified ones—Trump wanted shipped to Mar-a-Lago or Biden to his prized Corvette in his locked garage (huh?), what exactly is the big deal here in either case?
That is, unless the documents might potentially have seriously compromised national security and if Trump or Biden, or both, actually participated in the process of “purloining” them—“deliberately” withholding them from the National Archives where they should have been transported immediately when their respective terms were over. Or, for that matter, if the withheld documents relating to scandals over which the respective officials could face potentially serious investigations by the Justice Department and congressional committees led by opposing political parties—maybe in both instances relating to Ukraine.
So, before the public makes up its mind in either case, it should really have the facts. Who specifically decided which documents to withhold? What exactly are the documents in question? And precisely why were they withheld? Without answers to those crucial questions, all we have are questions.